United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR., UNITED STATES DISTRICT JUDGE
MATTER is before the Court on two pending motions:
(1) Plaintiffs' Motion for Final Certification of
Settlement Class and Final Approval of Class Action
Settlement, (Doc. No. 10); and (2) Plaintiffs' Motion for
Attorneys' Fees and Non- Taxable Costs and Class
Representative Service Awards, (Doc. No. 4); and the
Parties' associated briefs and exhibits. The Court will
address each motion in separate parts of the Order.
FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
matter came before the Court for hearing on the application
of the Parties for approval of the Settlement Agreement and
Release dated August 31, 2018 (the “Agreement”).
On November 2, 2018, the United States Bankruptcy Court for
the Western District of North Carolina (the “Bankruptcy
Court”) granted preliminary approval to the proposed
class action settlement set forth in the Agreement between
Plaintiffs Christopher Dee Cotton, Allison Hedrick Cotton,
Ignacio Perez, and Gabriela Delfina Perez (the “Class
Representatives”), on behalf of themselves and all
members of the Class, and Defendant Wells Fargo Bank, N.A
(“Wells Fargo Bank, ” and, collectively with
Defendant Wells Fargo & Co., the
“Defendants”). The Bankruptcy Court also
provisionally certified the Class for settlement purposes and
approved the procedure for giving Class Notice to the members
of the Settlement Class. This Court granted the Parties'
Joint Motion to Withdraw the Bankruptcy Reference and set a
Final Approval Hearing to take place on March 4, 2019 (Doc.
No. 6). This Court finds that the Class Notice substantially
in the forms approved by the Bankruptcy Court in the
Preliminary Approval Order was given in the manner ordered by
the Bankruptcy Court, constitutes the best practicable
notice, and was fair, reasonable, and adequate.
March 4, 2019, this Court held a duly noticed Final Approval
Hearing to consider, among other things: (1) whether to
certify the Class for settlement purposes; (2) whether the
terms and conditions of the Agreement are fair, reasonable
and adequate; (3) whether a judgment should be entered
dismissing the Class Representatives' Released Claims on
the merits and with prejudice; and (4) whether and in what
amount to award attorneys' fees and expenses to Class
Counsel for the Class.
IS THEREFORE ORDERED that:
Definitions. This Judgment incorporates by
reference the definitions in the Agreement, and all
capitalized terms used, but not defined herein, shall have
the same meanings as in the Agreement.
Jurisdiction. This Court has jurisdiction
over the subject matter of the Action and over all parties to
the Action, including all Members of the Class, and venue in
this Court is proper.
No Merits Determination. By entering this
Order, the Court does not make any determination as to the
merits of this case.
Settlement Class. Pursuant to Rule 23 of the
Federal Rules of Civil Procedure, this Court hereby finally
certifies, for settlement purposes only (and for no other
purpose and with no other effect upon the Action, including
no effect upon the Action should the Effective Date not
occur), this Action as a class action, with the Class defined
as those individual borrowers who (i) maintained a home
mortgage loan owned or serviced by Wells Fargo Bank, (ii) are
currently or were formerly in a Chapter 13 bankruptcy case,
and (iii) were solicited by Wells Fargo Bank for a
No-Application Modification within 120 days prior to or any
date after the filing of the petition for the Chapter 13
bankruptcy or the date of conversion of a Chapter 7, 11, or
12 bankruptcy to a Chapter 13 bankruptcy, and prior to final
dismissal or discharge of such Chapter 13 bankruptcy case.
The Court finds, for settlement purposes only, that class
certification under Fed.R.Civ.P. 23(b)(3) is appropriate in
that, in the settlement context: (a) the Members of the Class
are so numerous that joinder of all Class Members in the
class action is impracticable; (b) there are questions of law
and fact common to the Class which predominate over any
individual question; (c) the claims of the Class
Representatives are typical of the claims of the Class; (d)
the Class Representatives and their counsel will fairly and
adequately represent and protect the interests of the Class
Members; (e) the class is ascertainable; and (f) a class
action is superior to other available methods for the fair
and efficient adjudication of the controversy.
Designation of Class Representatives and Class
Counsel. The Court confirms the prior appointments
of the Plaintiffs Christopher Dee Cotton, Allison Hedrick
Cotton, Ignacio Perez, and Gabriela Delfina Perez as Class
Representatives, and Theodore O. Bartholow, Karen L. Kellett
and O. Max Gardner (of counsel) of Kellett & Bartholow
PLLC, Derick Henderson of Sigmon & Henderson, PLLC, and
Abelardo Limon of Limon Law Office as Class Counsel.
Settlement Approval. Pursuant to Federal
Rule of Civil Procedure 23, this Court hereby approves the
Settlement set forth in the Agreement and finds that the
Settlement is, in all respects, fair, reasonable and adequate
to the Parties. The Court further finds that the Settlement
set forth in the Agreement is the result of good faith
arm's-length negotiations between experienced counsel
representing the interests of the Parties. Accordingly, the
Settlement embodied in the Agreement is hereby finally
approved in all respects, there is no just reason for delay,
and the Parties are hereby directed to perform its terms.
Dismissal with Prejudice. Final Judgment is
hereby entered with respect to the Released Claims of all
Settlement Class Members, and the Released Claims in the
Action are hereby dismissed in their entirety with prejudice.
The Amended Complaint is dismissed, and the Action shall be
closed. All claims in the Action are dismissed. Nothing
herein is intended to waive or prejudice the rights of Class
Members who have timely excluded themselves from the Class,
as identified in Exhibit E of the Declaration of James Parks
Regarding Class Notification and Settlement Administration
filed with the Court on February 18, 2019. See Doc.
No. 11-10 at 41.
Releases. The releases as set forth in
Section 10 of the Agreement together with the definitions in
Sections 1.1-1.57 relating thereto are expressly incorporated
herein in all respects and made effective by operation of
this Judgment. The Court hereby approves the release
provisions as contained and incorporated in Section 10 of the
Agreement, including but not limited to the definitions of
Released Claims, Releasors, Releasees and Unknown Claims. The
Releasors shall be deemed to have, and by operation of the